The legal process, at least in English law, is a quite inadequate instrument for arriving at the truth about a crime. This is not necessarily an adverse comment. There is justification for requiring that if the state accuses a citizen of a crime it must prove it in an adversarial process to the full satisfaction of at least ten jurors. And this is why criminal trials are not designed to arrive at anything so baffling or protean as the truth: their sole purpose, it has been said, is to answer the question ‘Howzat?’ Paul Foot’s question, who killed Carl Bridgewater? was not the question before the jury which in 1979 at Stafford convicted three men and a boy of shooting in cold blood a 13-year-old lad who had evidently stumbled on a burglary at Yew Tree Farm in Staffordshire in the course of his newspaper round. The question for them was simply whether the evidence before them satisfied them that the four men in the dock were guilty of the killing. Put like that, the distinction appears to be without a difference, and so it is in a great many cases. Foot’s energetic, passionate and meticulous inquiry into the Bridgewater murder, however, has once again exposed the cleft which can occur between the two. He has not been able definitely to answer his own question: but he has been able to show beyond a peradventure that if a jury had known what is now known about the case, it would not have inculpated the three men serving life sentences and the fourth who has died in gaol.
Criminal investigation, whatever its myth-makers say, is not an essentially objective process. The pursuit of a case from clue to clue until the culprit has been run to earth belongs chiefly to the realms of fiction. Even where the chase starts from a fingerprint, the identification of its owner provides no more than a hypothesis that has to be proved and may be able to be disproved. But the far more common source of hypotheses lies in a murky region far removed from admissible or even reliable evidence – the world of police informers and petty criminals, many of them inadequate or disturbed and all of them needing to ingratiate themselves with the Police. A whisper from this sort of source is a common hypothesis – intrinsically worthless but requiring investigation.
It is here that the greatest potential for injustice lies. A murder like that of Carl Bridgewater cries out for vengeance. I recall the cry being amplified at the time by the press – because Carl had been delivering newspapers when he was killed. Police culture also reflects and enlarges popular antipathy to child-killers. The pressure to find culprits was enormous. When one looks back at similar cases where the convictions are now in doubt – Hanratty (an earlier subject of Paul Foot), the Guildford bombers, the Birmingham pub bombers – there is an evident link between the gravity of the crime and the risk of a miscarriage of justice.
Foot chronicles the frustration of the Police as time went by and no worthwhile clue to the identity of the killer or killers emerged – at least, none that was recognised at the time. What then happened followed a classic pattern. About ten weeks after the burglary and murder at Yew Tree Farm, near Wordsley, a burglary occurred at Chapel Farm, Romsley, in Worcestershire, about an hour’s drive away. Its inhabitants, like those of Yew Tree Farm, were two elderly people, and again a shotgun was used. The burglary threw up a ready hypothesis: catch the Chapel Farm burglars and we may well have the Yew Tree Farm killers.
The Police rapidly found the Chapel Farm burglars because a passer-by had taken the number of their getaway car. It led them to a minor criminal named Vincent Hickey who – get this – had already been routinely interviewed in the Yew Tree Farm murder inquiry because he had a record and a car which answered one of the descriptions (a blue Cortina Estate) given by neighbours or passers-by of a car seen at the farm about the time of the murder. The apparent similarity between the two events, such as it was, might have been a great encouragement to the Police to think that they were on the right track at last. But it was not evidence. At trial, the judge rightly ruled out all references to the Chapel Farm burglary: it was highly prejudicial, but any factual link to the killing would have been, in law, speculative only. Any eventual case, therefore, had to stand up without its hypothetical foundation.
The same applied to any incriminating information given to the Police. If it came from another person, it was hearsay and not evidence in court against the suspect; if it came from the suspect’s own mouth, it was admissible evidence against him. Every police investigation proceeds in this knowledge, and the pressure to find the culprit is translated into pressure to ensure that suspicious information becomes admissible evidence. The classic means is to confront the suspect with something another suspect or informer has said, or allegedly said, to incriminate him: the suspect’s response, especially if it is an admission, becomes admissible evidence. And there are rewards, some of them handed out by the judiciary, for providing such information.
Vincent Hickey knew exactly how the system worked. Earlier in 1978 he had been caught by the Hertfordshire Police for a robbery which he had set up, and had bought himself a reduced charge, and consequently a suspended sentence, by informing on his cousin Reg, who got four years for it. Now it had happened again: he had been caught for the Chapel Farm robbery – only this time the Police were interested in its link with the murder of Carl Bridgewater and the stakes were high. Vincent Hickey named his accomplices at Chapel Farm: his cousin Michael Hickey, aged 16 but already an experienced minor criminal, and Jimmy Robinson, a man in his mid-forties with a mixed career of regular work and crime whose letters from prison, quoted by Foot, show intelligence and a powerful way with words. For good measure he told the Police, untruthfully, that Robinson had admitted to Michael Hickey that he had killed Carl Bridgewater. Again, not evidence, but food for the hypothesis.
From there the wagon rolled relentlessly on. Vincent Hickey topped off his work by implicating Robinson’s drinking partner, Pat Molloy. The four were interrogated for three days without a friend or lawyer present. Vincent Hickey responded with gobbets of mostly worthless information about the Bridgewater murder; the little he gave which appeared to prove first-hand knowledge is now shown by Foot to have been broadcast nationwide on television and to be equally worthless. He offered to confess, then retracted because the deal he wanted was not forthcoming. Molloy broke down in the course of an interrogation which, judging by the passages quoted by Foot from the Police’s own account, might have reduced almost anyone to bewildered compliance. In a police station there is no law against asking questions designed to elicit the answer the questioner desires, and no judge or defence counsel to stop it becoming oppressive. When Molloy did not answer promptly, he got: ‘Only guilty men have to think. If you’re innocent you’ve got nothing to think about.’ When he replied, ‘I am innocent,’ he got: ‘I don’t believe you, Pat ... You don’t look a bit genuine.’ The reason they didn’t believe him was, of course, that another man had implicated him to save his own skin – no good as evidence but excellent as hypothesis. And Molloy finally broke down. He made a lengthy confession, incriminating himself (but only as a bystander – it got him a conviction for manslaughter where the other three went down for murder) and implicating his accuser Vincent Hickey, Hickey’s young cousin Michael and Molloy’s own friend Robinson. Every attempt to get him to body out his confession with factual detail foundered on his utter vagueness about what he was confessing to.
But it was this confession that probably sank the lot of them at trial. In law, as the judge and lawyers repeatedly told the jury, it was evidence against Molloy alone, to be disregarded when considering the other three. In real life, it must have been as impossible for the jury to disregard it as it had been for the Police: both knew it was legally inadmissible, but how could flesh and blood put it out of mind when these might be the killers of an innocent schoolboy hoping to go scot-free? And the confession went unchallenged: Molloy – no doubt on the wise advice that if he denied the confession and was disbelieved he could go down for murder – elected not to give evidence in his own defence.
We no longer believe either that torture elicits the truth or (more tenuously) that even if it did it would be justified. Instead we believe that the insistent, repetitiously suggestive interrogation of an isolated and eventually disoriented individual fits both bills. When its practice and products come to our knowledge from other countries, we are neither dismissive nor disbelieving: we are shocked. There are first-hand accounts, for example, of how, without torture but by endless persuasive questioning, the victims of Stalin’s purge trials in Czechoslovakia and elsewhere finally confessed to acts of treachery they could not possibly have committed, and were so fixed in their broken state of mind that they repeated their confessions without prompting in court. The belief that it doesn’t happen here permitted the UK Government in very recent times to try to defend in the European Court of Human Rights the cruel methods of questioning used in Northern Ireland and amounting, as the Court found, to inhuman and degrading treatment. What we still have to come to terms with is the unreliability, as well as the wrongness, of lesser forms of oppression used daily in criminal investigation and regularly countenanced by the courts.
For the rest, a case of a kind had been pieced together against the other three men. Each element of it was rigorously sifted out by investigating officers from other material that might have contradicted it: the pieces of evidence selected by the prosecution to destroy Robinson’s alibi, for example, had co-existed with other evidence capable of supporting it which was shelved. Witnesses whose statements initially controverted the Police’s case were re-questioned and invited to reconsider their recollections in the light of what others recollected and of warnings about the seriousness of making an erroneous statement. In this way the prophecy that the four men would turn out to be the culprits fulfilled itself.
I have been describing a lawful investigation and trial – not malpractice. The Court of Appeal held in due course that there were no grounds for even granting leave to appeal. But it is a process which can readily be seen to be open to dreadful error, both in investigation and at trial. The content has changed, beyond recognition, but our process of accusation and conviction does not differ markedly from the trial of the Salem witches. Once those in authority perceive something to be a fact, there is an entire apparatus at their disposal for proving it to be so: self-seeking accusers, suggestible or imaginative witnesses, broken suspects, the power to give credit to what supports the hypothesis and to rubbish what controverts it.
Our adversarial system of criminal justice has a mass of safeguards against the technical possibilities of erring beyond strict and relevant proof. It needs them precisely because the foundation of our criminal process is a search not for the truth but for a culprit, whose postulated guilt must be proven. One of the safeguards is a duty resting on the prosecution to disclose to the defence any statements by witnesses whom the prosecution does not intend to call. Seven thousand pages of such statements were tendered to the defence in the Carl Bridgewater case: but a further six witness statements, some arguably important, were withheld in the exercise of a general discretion which did the authorities no credit at all. (This practice has now been replaced by criteria which still contain as much legerdemain as law – for instance, statements can be withheld if, though helpful to the defence, the DPP believes them to be untrue.)
In one sense, Paul Foot has set out to do a reverse police investigation. His hypothesis is that the four men did not commit the murder. The difference is that he does not have to prove their innocence – only that the proof of their guilt can be shown to be utterly flawed; and this he does convincingly. Witness after witness has retracted the evidence given against the men at Stafford Crown Court, many giving reasons which call into doubt the way in which criminal investigations are undertaken. One of them is the aforementioned Reg Hickey, who repaid his cousin Vincent for landing him a four-year sentence by (he now says) fabricating some damaging evidence connecting Vincent with Yew Tree Farm. Even since the book went to press, more has emerged. A convict named Brian Sinton who Foot suggests was deliberately planted by prison staff to extract or fabricate a confession from Michael Hickey has confirmed that that is exactly what did happen; and he has done so not in order to swim with the new tide but in a statement deposited with his solicitor six years ago.
Although Foot has succeeded in shaking down almost every element of the case against each individual, the event which dominates the story is one of those extraordinary examples of life, as Oscar Wilde said it did, imitating art – in this case, detective fiction. A month after the four men were sentenced, an ambulance liaison officer named Hubert Spencer, an amateur antique collector and dealer, was having dinner with the farmer of Yew Tree Farm in his neighbouring home, Holloway House. He went out to his car, returned with a sawn-off shotgun and shot the farmer at point-blank range, just as Carl Bridgewater had been shot. His wife and the farmer’s daughter escaped and raised the alarm. He is now serving a life sentence.
Foot does not accuse Spencer of Carl Bridgewater’s murder. What leaps from his pages, however, is that if the Holloway House murder had been committed when the Chapel Farm burglary was, the latter would have been ignored and the Police’s hypothesis would have been: find the Holloway House killer and we may well have Carl Bridgewater’s killer. And having found him, they would have found far readier support for their hypothesis than the other four men afforded. Spencer had actually been questioned shortly after the Bridgewater killing because he fitted a witness’s description of a car and of its occupant seen near the farm at the relevant time. He had also been named in an anonymous telephone call. Yew Tree Farm had been burgled for its antiques. And, through his children, Spencer knew Carl Bridgewater.
What happened instead was classic. The various pieces of evidence about Spencer were never properly assembled. A colleague at work gave him an alibi, and instead of testing it and following the numerous leads they now had, the Police seemed to lose interest for a week or so. Then the Chapel Farm robbery gave them a new lead to the Hickeys, Robinson and Molloy, and they set off in successful pursuit of the new quarry. By the time the four men reached the Court of Appeal they effectively had the task of proving the jury wrong. The DPP had supplied their lawyers with the papers in the case against Spencer, but with the legal cards now stacked against them the court simply pointed out that if Spencer had been there it need only have been as fifth man.
Although it is the Spencer case which casts ineradicable doubt on the verdicts for lawyers and crime buffs, the dynamo which has driven the campaign to clear the names of the four men has been something much braver and humbler – the refusal of Michael Hickey and his mother, Ann Whelan, to accept the result. Hickey staged an astonishing rooftop protest for 89 days in freezing weather from November 1983 to February 1984. His mother has patiently re-investigated the evidence, and in so doing enlisted Paul Foot’s initially cautious support. The case he now advances might encounter endless difficulties in a court of law, most of them no doubt because of laudable rules of evidence. But whatever the difficulties of proof, the truth now seems horrifyingly plain: these men probably had nothing to do with Carl Bridgewater’s murder and the three still alive ought not to be in prison. Molloy has died there; Vincent Hickey is a physical and mental wreck; Michael Hickey, his young life wasted, has lapsed into mental illness; only Jimmy Robinson continues to fire salvoes of invective at his accusers from behind bars. It is still not too late for us as a society to acknowledge that even if we can make a legal system fair we cannot make it infallible, and to recognise that truth is a more elusive thing than the verdict of a jury.